United States Department of the Interior BUREAU OF LAND MANAGEMENT Supplemental Environmental Impact Statement DOI-BLM-NV-0000-20 13-000 l-EIS Case File Numbers: 2880 NVN-084650, OR-64807, UTU-82880, And WYW-1 71 I 68 (W0350) RECORD OF DECISION Ruby Pipeline Project Decision to Reissue Right-of-Way Grant Lincoln and Uinta Counties, Wyoming Rich, Cache, and Box Elder Counties Utah Elko, Humboldt and Washoe Counties, Nevada Lake and Klamath Counties, Oregon U.S. Department of the Interior
Bureau of Land Management Nevada State Office Kemmerer Field Office, Wyoming Salt Lake Field Office, Utah Elko and Winnemucca District Offices, Nevada Lakeview Resource Area and Klamath Falls Resource Area, Oregon Surprise Field Office, California I 340 Financial Boulevard Reno, Nevada 89502 775-861-6400 Record of Decision Ruby Pipeline Projea Introduction
This document constitutes the Record of Decision (ROD) of the U.S. Department of the
lnte~ior, Bureau of Land Management (BLM), Nevada State Office, for the Ruby Pipeline Project
(ProJect). It doc~ments the BLM's decision to reissue the right-of-way granted to Ruby Pipeline,
LLC (Ruby) and rncludes a summary of public involvement in the decision making process and
the basis for making this decision.
The ROD is based on the analyses contained in the Final Environmental Impact Statement (EIS),
the Draft Supplemental Environmental Impact Statement (SEIS) and the Final SEIS for the
Project. It also relies on the U.S. Fish and Wildlife Service's (FWS) Revision to the June 8, 2010
Ruby Pipeline Biological Opinion (BiOp). On July 5, 2013, the Revised BiOp was published on
the Federal Energy Regulatory Commission's (FERC) website (www.ferc.gov). The Revised
BiOp is also attached as Attachment A.
This document meets the requirements for a ROD, as provided in Council on Environmental
Quality (CEQ) regulations codified at 40 Code of Federal Regulations (CFR) § 1505.2, and
follows the guidance found in 40 CFR § 1506.10 and BLM Handbook H-1790-1 § 9.7. As
explained in more detail below, this ROD can be appealed to the Interior Board of Land
Appeals (or to an appropriate United States Court of Appeals), so the BLM is releasing the Final
SEIS and ROD on the same date. Review of the Final SEIS and the opportunity to seek review
of the ROD run concurrently.
Background
The Project is a 678-mile-long, 42-inch-diameter interstate natural gas pipeline beginning near
Opal, Wyoming, running through northern Utah and northern Nevada, and terminating near
Malin, Oregon. The project crosses about 368 miles of federal land.
The FERC is the federal agency responsible for evaluating applications to construct and operate
interstate natural gas pipeline facilities. Section 7(c) of the Natural Gas Act (NGA) authorizes
the FERC to issue a Certificate of Public Convenience and Necessity (Certificate) if it
determines that the proposed service is required for the public convenience and necessity [ 15
United States Code (U.S.C.) 717f(c)]. On January 27, 2009, Ruby filed an application with the
FERC for a Certificate of Public Convenience and Necessity for the Project. The FERC
prepared an EIS to assess the environmental impacts associated with the proposed Project.
The BLM, Bureau of Reclamation (Reclamation), FWS, U.S. Forest Service (USFS), Natural
Resource Conservation Service, Army Corps of Engineers, Utah Public Lands Policy
Coordination Office, and Lincoln County (Wyoming) Board of County Commissioners
participated as cooperating agencies in the preparation of the EIS because of jurisdiction over
part of the project area or because of special expertise with respect to environmental
resources in the project area.
The BLM adopted the Final EIS for the Project in accordance with 40 CFR, § 1506.3 to meet its
responsibilities under the National Environmental Policy Act (NEPA).
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Record of Decision
Ruby Pipeline Project
The Project was approved by the FERC on April 5, 20 I 0 and the BLM issued a ROD granting
rights-of-way and temporary use permits to Ruby for the construction, operation, maintenance,
and termination of the Project on July 12, 20 I 0. The ROW authorized the use of Federal lands
under jurisdiction of the BLM, the USFS, Reclamation, and the FWS in Wyoming, Utah, Nevada,
and Oregon. Since July 12, 20 I 0, the BLM has issued four additional decisions regarding the
grant
• the December I 0, 2010 decision is for the Summit Lake Route Variance in Humboldt
County, Nevada, and accepts the final Winter Construction Plan as Appendix V of
Ruby's Plan of Development (POD);
• the February 24, 20 II decision is for the Klamath County Reroute in Oregon;
• the December 7, 20 I I decision approves four above ground cathode sites and fifteen
roads to mainline valves;
• the July 27, 2012 decision incorporates documents that reflect the final pipeline as built
and approval of the Long Term Monitoring Plan as Appendix W of POD.
Construction of the pipeline commenced in the summer of 20 I 0 and was completed in the
summer of 20 I I. The pipeline went into service on July 28, 20 I I.
The Center for Biological Diversity, Defenders of Wildlife, and Summit Lake Paiute
Tribe, among other entities, filed petitions for review of the 20 I 0 BiOp and the BLM's ROD in
the Ninth Circuit Court of Appeals case nos. I 0-72356, I 0-72552, I 0-72762, I 0-72768, and I 0­
72775 (consolidated). In October 2012, the court denied most of the petitioners' claims,
including all claims brought under the National Historic Preservation Act. Federal Land Policy
and Management Act. and Clean Water Act. but found the 20 I 0 BiOp and BLM ROD to be
inadequate.
In a published opinion, the court remanded and vacated the 2010 BiOp to the FWS. The court
held that FWS's consideration of Ruby's Endangered Species Act (ESA) Conservation Action
Plan (CAP) as cumulative effects in the 20 I 0 BiOp was arbitrary and capricious. The court also
found that the 20 I 0 BiOp did not adequately consider whether groundwater withdrawals
associated with hydrostatic testing and dust abatement would impact listed fish that occur in
surface waters. The court remanded and vacated the BLM's ROD because it relied on the 20 I 0
BiOp.
In an unpublished opinion, the court found that the Final EIS for the Project did not provide
sufficient quantified or detailed data about the cumulative loss of sagebrush steppe vegetation
and habitat and did not provide information on how much acreage sagebrush steppe used to
occupy, or what percentage has been destroyed. Thus, the court remanded the ROD to the
BLM for further analysis of cumulative impacts to sage brush steppe vegetation and habitat. The
court subsequently stayed vacature of the 20 I 0 BiOp until the FWS issued the Revised BiOp
and stayed vacature of the BLM's ROD until the BLM issues a new ROD.
The Bureau of Land Management's Decision
The BLM's decision is to reissue the July 12, 20 I 0 right-of-way, as previously amended, for the
Project. The BLM will not require additional post-construction mitigation or changes to the
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Ruby Pipeline Project
right-of-way grant. All elements of the July 12, 20 I 0 ROD and subsequent BLM decisions (see
above) remain in full force and effect, including all stipulations, monitoring, and mitigation
measures.
Reasons for the Decision
In making this decision, the BLM reviewed and carefully considered pertinent Federal laws,
impacts identified in the Final EIS, Revised BiOp and Final SEIS, relevant issues and concerns,
and input from agencies, Native American tribes, and the public received throughout the SEIS
public review process, including comments on the Draft SEIS. The BLM's assessment of
cumulative impacts to sage brush steppe in the Final SEIS and the FWS's conclusions in the
Revised BiOp are summarized below.
The Final EIS addresses the court's direction to provide quantified and detailed data about the
cumulative loss of sagebrush steppe vegetation and habitat and information on how much
acreage sagebrush steppe use to occupy, and what percentage has been destroyed. It also
includes detailed information on past, present, and reasonably foreseeable actions within the
cumulative impact area, as defined in the Final EIS for the Project, which have resulted in and
may in the future cause significant impacts.
The direct and indirect impacts of the Project remain the same as those discussed in the Final
EIS. The Final SEIS is consistent with the Final EIS in concluding that clearing of sagebrush
steppe for the Project could result in long-term impacts on the environment because this
vegetation type could take as long as 50 years or more to return to preconstruction
conditions. The mitigation required by the FERC Certificate and the BLM ROD is intended to
address these significant, long-term impacts. The mitigation described in the Final EIS and
includes, but is not limited to, activities such as segregating topsoil from subsoil during
construction to preserve the native seed bank in the topsoil; reseeding areas disturbed by
construction with species similar to those in the surrounding natural plant communities;
planting shrubs to aid in the reestablishment of sagebrush and other shrubby species;
implementing measures to control the spread of invasive and noxious weeds during and after
construction; and fund for off-site mitigation, such as the restoration and habitat improvement
projects described in Table I of the Final SEIS.
The 20 I 0 BiOp found that the proposed action was not likely to jeopardize the continuing
existence of any of the listed species or result in destruction or adverse modification of
designated critical habitats. The findings of the Revised BiOp, described below, are consistent
with those reached in the 20 I OBiOp.
"After reviewing the current status of Lahontan cutthroat trout, Womer sucker, Modoc sucker,
Lost River sucker, shortnose sucker, Colorado pikeminnow, humpback chub, razorback sucker,
and bonytail chub, and designated critical habitat for Womer sucker, Colorado pikeminnow,
humpback chub, razorback sucker, and bonytail chub, the environmental baseline for these
listed fishes and their designated critical habitats within the action area, the effects of the
proposed action and cumulative effects, it is the FWS' biological opinion that the Project is not
likely to jeopardize the continued existence of Lahontan cutthroat trout, Womer sucker, Modoc
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Ruby Pipeline Project
sucker, Lost River sucker, shortnose sucker, Colorado pikeminnow, humpback chub, razorback
sucker, and bonytail chub (Revised BiOp, Page 15). "
The FWS also affirmed the accuracy of the incidental take statement found in the 20 I 0 BiOp
and incorporated it by reference. Those conclusions were drawn without consideration of or
reliance on the ESA CAP. The conservation recommendations described in the 20 I 0 BiOp
were reviewed by the FWS, were determined to stand as written, and were incorporated by
reference.
Mitigation and Monitoring
The CEQ regulations require agencies to identify in their ROD any mitigation measures that
are necessary to minimize environmental harm from the alternative selected [40 CFR §
1505.2(c)]. The regulations further state that a monitoring and enforcement program shall be
adopted where applicable for any mitigation (40 CFR § 1505.3). 1
As explained above, the Project's impacts remain are consistent with those disclosed in the
Final EIS. The Final SEIS thoroughly discusses the cumulative impacts to sage brush steppe
habitat within the cumulative impact area and summarizes the substantial mitigation required by
the BLM's July 12, 2010 ROD (and the FERC's Certificate). The mitigation measures required
by the ROD are intended to address the significant long- term impacts to sage-brush steppe
habitat related to the Project. All elements of the July 12, 20 I 0 ROD and subsequent BLM
decisions remain in full force and effect, including all stipulations, monitoring, and mitigation
measures. The BLM concludes that those mitigation measures are adequate and additional
mitigation measures are not required.
Summary of Agency and Tribal Consultation and Public Involvement
The BLM sent a certified letter, dated March 13, 2013, notifying 36 Native American tribes of
BLM'S intent to develop an SEIS for the Project and to initiate government-to-government
consultation. Follow-up phone calls were made to the tribes and project information was also
distributed and discussed as part of government-to-government consultation between the
tribes and the BLM. A summary of Native American consultation and coordination on this
effort is provided in the SEIS.
On April 8, 2013, the BLM invited eight federal and state entities to be cooperating agencies for
the development of the Ruby Pipeline SEIS. As defined by CEQ regulations at 40 CFR § 1508.5,
a cooperating agency is one that has special expertise with respect to an environmental issue
and/or has jurisdiction by law. The following agencies accepted the invitation and signed a
Memorandum of Understanding with the BLM as cooperating agencies:
1
CEQ's regulations also require a ROD to discuss alternatives considered by the agency in making its decision. 40
CFR § I 506.2. However, in this case, the pipeline is constructed and has been operational pursuant to a FERC­
issued Certificate since July 28, 20 I I. Thus, as stated by the Ninth Circuit Court of Appeals, " [a]t this point, an
analysis of alternatives would no longer inform decision-making regarding the pipeline's location." Center for
Biological Diversity, eta/. v. BLM, eta/., Case No. IO-n356, at 5 (20 12) (unpublished opinion).
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Record of Decision Ruby Pipeline Projea •
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•
•
U.S. Department of Agriculture, Forest Service, Fremont-Winema National Forest;
Utah Division of Wildlife Resources (via Utah Public Lands Policy Coordination Office);
Nevada Department of Wildlife; and
Wyoming Game and Fish Department.
On April 30, 2013 the Environmental Protection Agency (EPA) published the "Notice of Intent to
Prepare a Draft Supplemental Environmental Impact Statement for the Ruby Pipeline Project" in the
Federal Register (78 FR 2530 I). In addition, the BLM Nevada State Office issued a press release
and postcards notifying the public of this effort
The BLM sent a certified letter, dated July I, 2013, notifying 36 tribes of the public comment
period on the Draft SEIS and to again extend the offer of government-to-government
consultation. The BLM included a digital copy of the Draft SEIS and a hard copy, if previously
requested. The BLM followed-up with tribes and distributed additional information, as
requested, as part of government-to-government consultations with the tribes.
On July 5, 2013, the BLM and EPA published the "Notice of Availability of the Draft
Supplemental Environmental Impact Statement for the Ruby Pipeline Project" in the Federal
Register (78 FR 40496) announcing the availability of the Draft SEIS for public review and
comment. In addition, the BLM issued a press release and sent post card notifications to the
revised Project mailing list. The release of the Draft SEIS initiated a formal 45-day public
comment period that ended on August 19, 20 13. The public was encouraged to submit
substantive comments via email, regular mail, and the ePianning NEPA Register.
The Draft SEIS was made available to the public via the BLM Ruby Project website:
http://www.blm.gov/nv/st/en/info/nepa/ruby_pipeline_project.html, and the ePianning NEPA
Register at http://on.doi.gov/l OQta Tb. Consistent with the Final EIS distribution, the Draft SEIS
was available at libraries and other locations. The list of additional locations can be found on
the Project website.
The BLM received 3 I comment submissions on the Draft SEIS from the public, agencies, tribes,
organizations, and businesses during the comment period. Substantive comments were
considered during preparation of this Final SEIS. Appendix A of the Final SEIS summarizes the
comments and the responses to those comments.
Publication and distribution of the ROD and public notification of the release of the Final SEIS
was consistent with the approach used for the Draft SEIS.
Summary of Public Comment on the Draft SEIS
During the Draft SEIS public comment period, the BLM received 31 written comments (letter,
email, or via the NEPA ePianning Register). Comments from Native American tribes, federal,
state, and local agencies, and the public were analyzed and considered in preparation of the
Final SEIS and this ROD.
While comments on the Draft SEIS were wide ranging, the majority of comments were focused
on three topics. First, commenters questioned the BLM's distinction that the impacts of the
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Record of Decision
Ruby Pipeline Project
Project would not be significant to sagebrush steppe habitat when considering present and
reasonably foreseeable future actions, but cumulative impacts to sagebrush steppe would be
significant when considering past, present, and reasonably foreseeable future actions.
Commenters suggested that, when considering present and reasonably foreseeable future
actions, the impacts from Ruby should be considered significant. Second, commenters
requested either that the BLM report back to the public on the effectiveness of on-site and off­
site restoration and mitigation efforts or include additional mitigation to address recommended
changes to the significance determination and the effectiveness of current restoration efforts.
Third, commenters requested additional information and discussion on livestock, wild horses
and burros.
Regarding the significance determination, the Draft and Final SEIS acknowledge that past actions
have had a significant cumulative impact on the sage brush steppe habitat. The Final SEIS was
revised to note that cumulative impacts from present and reasonably foreseeable future actions
also may be significant. The impacts of the Ruby Pipeline Project remain the same as those
discussed in the Final EIS. As explained above, the BLM has determined that existing mitigation
measures required in the ROD and Certificate are adequate and no additional mitigation is
required. Regarding restoration, the Final SEIS was revised to include a more detailed
discussion of: (I) Ruby's obligations regarding restoration, monitoring, and reporting; and (2)
the BLM's role in determining when restoration goals have been met, the possibility of
extending monitoring if goals are not being met, and the release of the bond submitted by Ruby
when goals are met. Moreover, restoration efforts pertain to implementation of the ROD and
are not germane to the court's direction to provide a more robust discussion of the cumulative
impacts to sagebrush steppe vegetation and habitat. The BLM and FERC will continue to
enforce applicable restoration and monitoring requirements. Finally, discussion and analysis in
the Cumulative Effects and Existing Environment sections regarding livestock and wild horses
and burros was updated and revised in response to comments.
Some commenters also requested that the BLM incorporate other additional actions, such as
connecting pipeline projects, into the cumulative impacts analysis. BLM reviewed specific actions
and incorporated them as appropriate, given the scope of the Final SEIS and cumulative impact
area defined in the Final EIS. The Final SEIS also included minor revisions in response to
comments. Several commenters requested the BLM to consider topics outside of the scope of
the analysis as described in the Purpose and Need. The BLM's responses to the substantive
comments and a summary of additional comments received during the comment period are
included in the Final SEIS (Attachment A, Draft Ruby SEIS Comment Response Report).
Some tribes submitted comments similar to those discussed above. Some tribes also
questioned the seed mixes used during restoration, affirmed their right to government-to­
government consultation, and stressed the cultural and religious significance of sagebrush
steppe habitat to Native American tribes. The BLM appreciates those comments, and the BLM
has responded to them in the Final SEIS (Attachment A, Draft Ruby SEIS Comment Response
Report).
Appeal Rights
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Record of Decision
Ruby Pipeline Project
By regulation, 43 CFR § 28810.1(b), this ROD is effective pending appeal. This ROD may be
appealed to the Interior Board of Land Appeals (IBLA) in accordance with that regulation, the
provisions of 43 CFR § 4, and the enclosed Form 1842-1. Alternatively, you may seek judicial
review of this ROD by filing a petition for review with an appropriate United States Court of
Appeals pursuant to 43 CFR § 4.21 (c) and Section 313(b) of the Energy Policy Act of 2005
(EPAct), which amended Section 19 of the Natural Gas Act (NGA) and is codified in relevant
part at 15 U.S.C. § 717r.
Appeals to the IBLA
If you decide to file an appeal with the IBLA, your Notice of Appeal must be addressed to the
Nevada State Director and served on the Office of the Regional Solicitor at the addresses
below within 30 days of the date of the publication of the EPA's NOA of the ROD and Final
SEIS in the Federal Register. The appellant has the burden of showing that the decision appealed
from is in error.
Nevada State Director
BLM Nevada State Office
1340 Financial Boulevard
Reno, NV 89502
Office of the Regional Solicitor
Pacific Southwest Region
2800 Cottage Way, E-1712
Sacramento, CA 9 5825
Within 30 days of filing the Notice of Appeal, you must file a complete statement of the reasons
why you are appealing. This must be filed with the IBLA at the following address with a copy to
the Office of the Regional Solicitor at the address above. If you fully stated your reasons for
appealing when filing the Notice of Appeal, no additional statement is necessary.
Interior Board of Land Appeals Office of Hearings and Appeals 80 I North Quincy Street. MS 300-QC Arlington, VA 22203 If you wish to file a petition, pursuant to 43 CFR §§ 2881.1 O(b) and 43 CFR § 4.21 (b), for a stay
of the effectiveness of this decision during the time that your appeal is being reviewed by the
IBLA, the petition for a stay must accompany your Notice of Appeal. A petition for a stay is
required to show sufficient justification based on the standards listed below. Copies of the
Notice of Appeal and petition for a stay must also be submitted to each party named in this
decision, the IBLA, and the Office of the Regional Solicitor (see 43 CFR §§ 4.413) at the same
time the original documents are filed at the office of the Nevada State Director. If you request
a stay, you have the burden of proof to demonstrate that a stay should be granted.
Except as otherwise provided by law or other pertinent regulations, a petition for a stay of a
decision pending appeal shall show sufficient justification based on the following standards:
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Record of Decision
Ruby Pipeline Project
(I) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant's success on the merits,
(3) The likelihood of immediate and irreparable harm if the stay is not granted, and
(4) Whether the public interest favors granting the stay.
Petitions for judicial Review
Section 19 of the NGA states, "The United States Court of Appeals for the circuit in which a
facility subject to section 717b of this title or section 717f of this title is proposed to be
constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil
action for the review of an order or action of a Federal agency (other than the Commission) or
State administrative agency acting pursuant to Federal law to issue, condition, or deny any
permit, license, concurrence, or approval (hereinafter collectively referred to as "permit")
required under Federal law, other than the Coastal Zone Management Act of 1972." 15 U.S.C.
§ 717r( d)( I).
This ROD is an order or action of a Federal agency issuing a permit, as that term is used in 15
U.S.C. § 717r(d)(l) because it is an agency decision to issue and condition a BLM ROW grant
for the use of Federal lands involved in the Ruby Pipeline Project, which is a facility that has
been constructed and will be operated pursuant to 15 U.S.C. § 717f. Accordingly, this ROD is
appealable directly to an appropriate United States Court of Appeals in accordance with 15
U.S.C. § 717r(d)( I) and the Federal Rules of Appellate Procedure.
Approval Signature
Approved
By:~~
Date:
Amy Lueders Authorized Officer and Nevada State Director Bureau of Land Management Contact Person:
Mark A. Mackiewicz, PMP
Senior National Project Manager
Bureau of Land Management
Washington Office
125 South 600 West
Price, Utah 8450 I
(435) 636-3616
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NOV 13ZOQ